Introduction

The first serious proposal for an international court was probably that made in 1872 by Gustav Moynier, one of the founders of the International Committee of the Red Cross (ICRC), who was concerned that national judges would not be able fairly to judge offences committed in wars in which their countries had been involved. Nothing came of this and inspite of the so-called Nuremberg promise that the trials after the Second World War would set a precedent for others, there was no early successor to the Nuremberg and Tokyo Tribunals to prosecute international crimes on the international level.[1] The international community maintained its reactive posture to crimes committed during armed conflicts when it established the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to try crimes committed during the infamous Yugoslav wars and Rwandan genocide respectively.

The wait for a permanent international criminal court finally came to an end in 1998 when the International Criminal Court (“ICC” or “the Court”) was established by the Rome Statute of the ICC. Nigeria became a state party to the statute on 27 September 2001 after depositing its instrument of ratification. However, Nigeria is yet to domesticate the Statute. The Court formally came into existence on 1 July 2002 when the required number of states (i.e sixty states) signed the statute. A major principle upon which the Court stands is the complementarity principle.

The Principle of Complementarity

The principle of complementarity is to the effect that the International Criminal Court’s powers with respect to prosecution of international crimes can only kick in upon the failure of State parties to try these crimes locally. The Court cannot exercise its jurisdiction unless there is a failure on the part of a national judicial system to try the crimes. The Court is intended to supplement, not to supplant national jurisdictions and the preamble to the ICC Statute recognizes that every State has a responsibility to exercise its own criminal jurisdiction over international crimes.[2] This principle in simple terms means that the ICC is not a court of first instance. It can only exercise its jurisdiction when a State is unwilling or unable genuinely to carry out the investigation or prosecution of international crimes[3] (i.e genocide, crimes against humanity, war crimes and crime of aggression).

Nigeria’s Armed Conflict and Crimes within the Jurisdiction of the Court

Nigeria has been embroiled in several internal conflicts, disturbances, and tensions such as the Niger-Delta militancy in the South, farmers-herders’ clashes in the North-central and theBoko Haram versus Nigerian Government in the North-east. Boko Haram’s brutal insurgency in Nigeria’s northeast began in 2009 and has been marked by targeted killings, suicide attacks, widespread abductions, burning and looting, and attacks on schools, teachers, and students. Between June 2011 and June 2018, anestimated 37,530 people were killed in incidents involving Boko Haram, including at least 15,000 civilians, 18,000 alleged Boko Haram fighters, and 2,000 state actors. The insurgency has displaced approximately 2 million people within Nigeria, and driven more than 240,000 into neighboring countries as refugees.[4]

This has attracted the attention of the ICC. The Office of the Prosecutor (“OTP”) in its Report of 12 November 2015 identified eight potential cases involving the commission of crimes against humanity and war crimes under Articles 7 and 8 of the Rome Statute including six for conduct by Boko Haram and two for conduct by the Nigerian Security Forces (“NSF”). In its recent report of 5 December 2018, the OTP identified new crimes in the form of communal violence in Nigeria’s North-central geographical zone carried out between Fulani herders and farmers.[5]

The conflict between Boko Haram and the NSF has been classified as a non-international armed conflict which has made international humanitarian law (IHL) applicable. However, there have been violations of IHL as well as other international crimes on the part of both parties. A major modus operandi of Boko Haram is the use of “child soldiers”, a crime punishable under the Rome Statute. A UNICEF report of April 2019 indicated that more than 3,500 children were forcefully recruitedby Boko Haram between 2013 and 2017. On the NSF side, there have been reports by Human Rights Watch that the NSFs have committed unlawful killings, torture, and forced disappearances, fueling the conflict.[6]

From the foregoing, it is beyond doubt that crimes under the jurisdiction of the Court have been committed and continue to be perpetrated in the armed conflict still raging in North-east Nigeria.

Investigation and Prosecution by Nigeria

In October 2017, Nigeria established special courts within the Federal High Court in Kainji, Niger State to try Boko Haram suspects, some of whom have been in detention since 2009. As at September 2018, 1,669 had been prosecuted.[7]

However, there are several shortcomings with Nigeria’s approach to these trials:

1.     Most of the suspects were charged with providing material and non-violent support to Boko Haram and not for beingBoko Haram members.

2.     Issues with the trials bordering on human rights violation such as absence of fair hearing with some of the proceedings concluded in minutes.

3.     No trial of any member of NSF has commenced as far as we know.

4.     People and communities victimized by its brutal attacks have been excluded from observing or testifying in the legal proceedings. This makes it impossible to convict suspects for the crimes charged. Victim participation is an important component expected to be present in trials for international crimes.

5.     The stand out issue identified however, is the fact that the charges have been brought under the Terrorism (Prevention) Act 2013. Some of the punishments meted out to some convicts have been nothing more than a slap on the wrist.

Conclusion

Crimes committed by Boko Haram are too atrocious to be tried in the shoddy manner Nigeria has gone about it. Nigeria, being a signatory to the Rome Statute, has made attempts to domesticate it.The Crimes against Humanity, War Crimes, Genocide and Related Offences Bill, has however, been pending before the National Assembly since 2012, there is nothing more indicative of Nigeria’s unwillingness to treat these international crimes with the seriousness they deserve. It is safe to say that Gustav Moynier’s 1872 concerns were not unreasonable after all.

It is this writer’s view that the trials are a smoke screen aimed at deflecting the OTP’s attention and ultimately keeping the ICC at bay by dishonestly using the complementarity principle to perpetuate this state of affairs.

Foot notes

[1]Robert Cryer et al, An Introduction to International Criminal Law and Procedure, (Cambridge University Press, 2007)

[2] Ibid

[3] Article 17 of the Statute of the ICC

[4]UNHCR, “Nigeria Emergency,” May 31, 2019, https://www.unhcr.org/en-us/nigeria-emergency.html (accessed September 20, 2019)

[5]International Criminal Court, Office of the Prosecutor “Report on Preliminary Examination Activities 2018”, December 5, 2018, https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf (accessed September 20, 2019)

[6]Human Rights Watch, “Spiraling Violence: Boko Haram Attacks and Security Force Abuses in Nigeria”, October 2012, https://www.hrw.org/report/2012/10/11/spiraling-violence/boko-haram-attacks-and-security-force-abuses-nigeria (accessed 20 September 2019)

[7]Human Rights Watch,“Nigeria: Flawed Trials of Boko Haram Suspects, September 17, 2018”, https://www.hrw.org/news/2018/09/17/nigeria-flawed-trials-boko-haram-suspects (accessed September 21, 2019)